Citation NR: 9619354
Decision Date: 07/11/96 Archive Date: 07/22/96
DOCKET NO. 94-20 840 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Chicago,
Illinois
THE ISSUES
1. Entitlement to an increased (compensable) evaluation for
bronchitis.
2. Entitlement to an increased (compensable) evaluation for
pes planus.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
D.W. Singleton, Counsel
REMAND
The veteran performed verified military service from October
1979 to August 1980.
This matter comes before the Board of Veterans’ Appeals
(Board) on appeal from a November 1988 rating decision issued
by the Department of Veterans Affairs (VA), Regional Office
(RO) in Chicago, Illinois. In that decision, the RO denied
the veteran’s claims seeking entitlement to a compensable
evaluation for bronchitis and pes planus.
In March 1989, the veteran filed a notice of disagreement
with respect to that rating action. He was furnished a
statement of the case, which included a discussion as to each
of the aforementioned issues, in May 1989; and his
substantive appeal was filed in June 1989. Subsequently, a
personal hearing was held in August 1989, at which time the
veteran presented argument of these issues. The United
States Court of Veterans Appeals, in Roy v. Brown, 5 Vet.App.
554, 555 (1993), notes that “[a]ppellate review of an RO
decision is initiated by an [notice of disagreement] and
‘completed by a substantive appeal after a statement of the
case [SOC] is furnished . . . . 38 U.S.C.A. § 7105(a) (West
1991); 38 C.F.R. § 20.200 [1995].” As such, the veteran
perfected a timely appeal of the denial of his claims of
entitlement to a compensable evaluation for bronchitis and
pes planus in June 1989 and, hence, his claims have been in
appellate status since that time.
Regrettably, the Board is of the opinion that additional
action by the RO is requisite prior to any further Board
review of the veteran’s claims. The Board notes that while
the veteran was furnished SOCs in May 1989 and March 1994,
respectively, pertinent evidence was received by the RO after
the May 1989 SOC had been issued; however, this same evidence
was not covered by the March 1994 SOC. Where, as in this
case, additional pertinent evidence is received after a SOC
has been issued and is not otherwise considered by the most
recent SOC, “a Supplemental Statement of the Case [SSOC] . .
. will be furnished to the appellant and his or her
representative.” 38 C.F.R. § 19.31 (1995); see also
38 U.S.C.A. § 7105(d) (West 1991). As a consequence, this
case must be remanded for correction of this procedural
defect in accordance with 38 C.F.R. § 19.31. See 38 C.F.R.
§ 19.9 (1995).
To ensure full compliance with due process requirements, the
case is REMANDED to the RO for the following development:
1. The RO should furnish the veteran and
his representative a supplemental
statement of the case in accordance with
38 U.S.C.A. § 7105(d) and 38 C.F.R.
§ 19.31, which summarizes all of the
evidence received after issuance of the
May 1989 statement of the case, to
specifically include the following: (1)
VA outpatient treatment records dated
November 1987 to May 1988; (2) the
transcript of personal hearing dated
August 1989; (3) VA outpatient treatment
records dated February to May 1980 (which
were received by the RO in December
1989); (4) the lists of prescribed drugs,
along with appointment dates (which were
received by the RO in May 1990); (5) VA
outpatient treatment records dated May
1989 to May 1990; (6) a report of VA
examination dated September 1990; (7) a
report of VA examination dated October
1990; (8) the RO’s September 1991 request
for completion of the September 1990 VA
examination with an explanation of the
pulmonary functions test results; and (9)
a VA memorandum prepared by Sol S.
Strauss, M.D., dated September 1991.
2. The supplemental statement of the
case should also include a clear and
detailed analysis of the reasons for the
RO’s most recent decision concerning the
veteran’s claims for an increased
(compensable) evaluation for bronchitis
and pes planus in February 1994; that is,
a discussion of why the veteran’s claims
for increased benefits are not warranted
under the applicable rating criteria.
When the above development is completed, the veteran and his
representative should be given the opportunity to respond
thereto. Thereafter, the case should be returned to the
Board, if otherwise in order, following appropriate appellate
procedures. The purpose of this REMAND is to accord due
process of law and the Board does not intimate any opinion,
either factual or legal, as to the ultimate disposition
warranted in this case. No action is required of the veteran
unless he receives further notice.
CONSTANCE B. TOBIAS
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1995).
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